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2012-06-01

Hollywood's Trolls

Our movie industry has created some memorable monsters on screen. But
Hollywood, and the major music labels, also helped create a very real
kind of monster - copyright trolls who coerce settlements from Internet
subscribers using intimidation and our out-of-whack copyright laws. Last
Friday, EFF Senior Staff Technologist Seth Schoen took the witness stand in AF Holdings v. Does
to explain to a federal judge why BitTorrent users should be able to
hold on to their constitutional rights when targeted by trolls. Although
some courts have put the brakes on the trolls' schemes, there's no
Hollywood ending in sight yet. As the entertainment industries continue
to push for ever-stronger copyright through treaties, private
agreements, Congress and state legislatures, it's time to ask - how will
Hollywood help protect us from the trolls?

The current crop
of copyright trolls sue anywhere from 20 to 5,000 "John Doe" defendants
in a single lawsuit, pinned to a list of Internet Protocol addresses
that they claim to have seen downloading copyrighted movies using
BitTorrent. Then, with the courts' permission, they send subpoenas to
Internet service providers for the names and addresses of subscribers.
The trolls then send threatening letters, demanding settlement payments
to "make this go away" or face being dragged into court - often in a
faraway state. Over 200,000 U.S. residents have been caught up in these
suits, with many undoubtedly settling simply to end the harassment.

The trolls are, of course, following a trail blazed by the major
music labels through the Recording Industry Association of America.
Beginning around 2003, they sued about 35,000 people, using the courts'
subpoena powers as a private investigation service to find names and
addresses. The RIAA ended its lawsuit campaign in 2008, apparently realizing the damage that suing its own fans had done to the industry's image.

It was perhaps inevitable that the vacuum would be filled by
opportunists with no public image to protect. Since 2008, troll lawyers
have sued about six times more people than the RIAA ever did, and
pursued them even more aggressively, probably netting millions in
settlements. Some have faced court settlements for cutting corners in
court procedure, and one was even caught practicing law without a
license. But this scheme wouldn't be a viable business model without the
draconian imbalances of U.S. copyright law and legal precedent that the
entertainment industries and their lobbyists have pushed through
Congress and the courts.

For starters, the statutory penalty for sharing even one copyrighted
work - say one song - is as much as $150,000. It's no surprise that many
people choose to settle for several thousand dollars rather than risk a
bankrupting court judgment - even if they broke no law. The
entertainment industries insist that we need these gargantuan penalties
to deter infringement, but the same "statutory damages" provisions are
the knobby club in the hands of the trolls.

Then there's the legal doctrine of "secondary liability." The movie
and recording industries are constantly pressing for broader liability
for intermediaries, Internet sites and services, and makers of tools and
software. Copyright trolls use these concepts to disregard actual
copyright infringers and instead go after the owners of Internet
accounts, who are often easier to find. The trolls suggest, using the
rhetoric of secondary liability, that merely allowing others to use
one's Internet connection, or operating an open Wi-Fi node, makes one
liable for any copyright infringement. This isn't the law, but the
trolls don't warn their marks about that. Often, even those who
understand secondary liability, or can afford hiring a lawyer, choose to
pay a settlement for someone else's alleged infringement rather than
risk a lengthy and expensive trial, even if they would prevail.

Then there's the very concept of lawsuits aimed at dozens or
thousands of "John Doe" Internet account holders. Plaintiffs in these
suits often group together Internet users from all over the country and
obtain their identities from ISPs by court order. Doing this requires
trampling on jurisdiction rules that keep people from being unfairly
forced to defend themselves far from home, joinder rules that guarantee
every defendant is treated as an individual, and the First Amendment,
which gives us a right to communicate anonymously. The RIAA's lawsuit
campaign also disregarded these legal safeguards. After the RIAA opened
this door, the trolls lumbered in.

Finally, the entertainment industries have spent decades, and
millions of lobbying and advertising dollars, to promote the simple but
flawed idea that if copyright law promotes creativity, then
ever-more-extreme copyright law will promote even more. According to
this philosophy, the importance of preventing even the most
inconsequential copyright infringement justifies chilling free speech,
unmasking anonymous Internet users, wholesale regulation of the Internet
… and setting loose the trolls. This worldview was on full display at a
hearing
last week in the D.C. federal district court, when ISPs, assisted by
the EFF, tried to quash subpoenas for Internet users' identities. EFF's
Seth Schoen matched wits with pornography financier AF Holdings's expert
on the workings of BitTorrent and Internet forensics, and the
plaintiff's attorney defended his litigation tactics as an acceptable
way to "stop piracy."

Although there will always be people willing to use the legal system
as part of a shakedown, copyright trolls are a monster created in
Hollywood. Naturally, the entertainment industry's spokespeople,
lobbyists, and other mouthpieces don't discuss how the laws, treaties,
court precedents, and private enforcement agreements they spend millions
to promote will be misused by opportunists. But when the next SOPA, PIPA, ACTA, TPP, graduated response agreement,
or state-level copyright bill comes along, let's ask Hollywood and its
allies how they plan to keep trolls confined to the big screen.

The article is reproduced in accordance with Section 107 of title 17 of the Copyright Law of the United States relating to fair-use and is for the purposes of criticism, comment, news reporting, teaching, scholarship, and research.